This order is subject to further editing and
modification.The final version will
appear in the bound volume of the official reports.

No.11-07

In the matter of the petition to create a Supreme Court
Rule for legal services following a major disaster.

FILED

JUL 5, 2012

Diane M. Fremgen

Clerk of Supreme Court

Madison, WI

On August 31, 2011, Rod W. Rogahn, Chairperson, Board
of Administrative Oversight, James M. Brennan, President, State Bar of
Wisconsin, and Keith L. Sellen, Director, Office of Lawyer Regulation, filed a
joint petition with the Wisconsin Supreme Court.The petition seeks to create a supreme court
rule for providing legal services following the determination of a major
disaster.The proposed rule was based on
an ABA Model Rule which had been adopted by 13 jurisdictions when the petition
was filed.

The court requested and received additional information
from the petitioners by letters dated October 14, 2011, and March 22,
2012.The petitioners responded, in
writing, on November 14, 2011, and April 11, 2012.On April 25, 2012, the court held a public
hearing on the petition.Joseph E.
Redding, Board of Administrative Oversight, and Keith L. Sellen, Director,
Office of Lawyer Regulation, presented the petition to the court.The court also received and considered
written comments from Attorney Dean Dietrich.At its ensuing open administrative conference, the court approved the
petition and adopted the proposed rule, with certain technical revisions.The proposed rule is based on an ABA Model
Rule so it contained general references to "the Court" or "this
jurisdiction." The court changed
the language to specifically refer to the Wisconsin Supreme Court and the State
of Wisconsin.The court also considered
whether the Clerk of Supreme Court or the Office of Lawyer Regulation would be
the more appropriate place for lawyers to file the registration statement
required by the rule, and determined that the statements will be filed with the
Clerk of Supreme Court.

IT IS ORDERED that, effective the date of this order,
the Supreme Court Rules are amended as follows:

Section 1.SCR 23.03 of the supreme court rules is
created to read:

SCR
23.03 Provision of legal services following determination of major
disaster. (1) Determination
of existence of major disaster.Solely
for purposes of this rule, the Wisconsin Supreme Court shall determine when an
emergency affecting the justice system, as a result of a natural or other major
disaster, has occurred in:

(a) the State of Wisconsin and whether the
emergency caused by the major disaster affects the entirety or only a part of
this jurisdiction, or

(b) another jurisdiction but only after such a
determination and its geographical scope have been made by the highest court of
that jurisdiction. The authority to
engage in the temporary practice of law in the State of Wisconsin pursuant to
sub. (3) shall extend only to lawyers who principally practice in the area of
such other jurisdiction determined to have suffered a major disaster causing an
emergency affecting the justice system and the provision of legal
services.

(2) Temporary practice in the State of Wisconsin
following major disaster.Following
the determination of an emergency affecting the justice system in Wisconsin
pursuant to sub. (1) of this rule, or a determination that persons displaced by
a major disaster in another jurisdiction and residing in Wisconsin are in need
of pro bono services and the assistance of lawyers from outside of this
jurisdiction is required to help provide such assistance, a lawyer authorized
to practice law in another United States jurisdiction, and not disbarred,
suspended from practice or otherwise restricted from practice in any
jurisdiction, may provide legal services in the State of Wisconsin on a
temporary basis. Such legal services
must be provided on a pro bono basis without compensation, expectation of
compensation or other direct or indirect pecuniary gain to the lawyer.Such legal services shall be assigned and
supervised through an established not-for-profit bar association, pro bono
program or legal services program or through such organization(s) specifically
designated by this Court.

(3) Temporary practice in the State of Wisconsin
following major disaster in another jurisdiction.Following the determination of a major
disaster in another United States jurisdiction, a lawyer who is authorized to
practice law and who principally practices in that affected jurisdiction, and
who is not disbarred, suspended from practice or otherwise restricted from
practice in any jurisdiction, may provide legal services in the State of
Wisconsin on a temporary basis. Those
legal services must arise out of and be reasonably related to that lawyer's
practice of law in the jurisdiction, or area of such other jurisdiction, where
the major disaster occurred.

(4) Duration of authority for temporary practice.The authority to practice law in the
State of Wisconsin granted by sub. (2) of this rule shall end when this Court
determines that the conditions caused by the major disaster in the State of
Wisconsin have ended except that a lawyer then representing clients in the
State of Wisconsin pursuant to sub. (2) is authorized to continue the provision
of legal services for such time as is reasonably necessary to complete the
representation, but the lawyer shall not thereafter accept new clients. The authority to practice law in the State of
Wisconsin granted by sub. (3) of this rule shall end 60 days after this Court
declares that the conditions caused by the major disaster in the affected
jurisdiction have ended.

(5) Court appearances. The authority granted by this rule does not
include appearances in court except:

(a) pursuant to that court's pro hac vice
admission rule (SCR 10.03(4)) and, if such authority is granted, any fees
for such admission shall be waived; or

(b) if this Court, in any determination made under
sub. (1), grants blanket permission to appear in all or designated courts of
this jurisdiction to lawyers providing legal services pursuant to sub. (2). If such an authorization is included, any pro
hac vice admission fees shall be waived.

(6) Disciplinary authority and registration
requirement. Lawyers providing
legal services in the State of Wisconsin pursuant to sub. (2) or (3) are
subject to the Wisconsin Supreme Court's disciplinary authority and the Rules
of Professional Conduct for Attorneys of this jurisdiction as provided in SCR
20:8.5 of the Rules of Professional Conduct. Lawyers providing legal services in the State
of Wisconsin under sub. (2) or (3) shall, within 30 days from the commencement
of the provision of legal services, file a registration statement with the
Clerk of Supreme Court. The registration
statement shall be in a form prescribed by this Court. Any lawyer who provides legal services
pursuant to this Rule shall not be considered to be engaged in the unlawful
practice of law in the State of Wisconsin.

(7)Notification to clients. Lawyers authorized to practice law in another
United States jurisdiction who provide legal services pursuant to this Rule
shall inform clients in Wisconsin of the jurisdiction in which they are
authorized to practice law, any limits of that authorization, and that they are
not authorized to practice law in the State of Wisconsin except as permitted by
this Rule. They shall not state or imply
to any person that they are otherwise authorized to practice law in the State
of Wisconsin.

ABA COMMENT

[1] A major disaster in this or another jurisdiction
may cause an emergency affecting the justice system with respect to the
provision of legal services for a sustained period of time interfering with the
ability of lawyers admitted and practicing in the affected jurisdiction to
continue to represent clients until the disaster has ended. When this happens,
lawyers from the affected jurisdiction may need to provide legal services to
their clients, on a temporary basis, from an office outside their home
jurisdiction. In addition, lawyers in an
unaffected jurisdiction may be willing to serve residents of the affected
jurisdiction who have unmet legal needs as a result of the disaster or, though
independent of the disaster, whose legal needs temporarily are unmet because of
disruption to the practices of local lawyers. Lawyers from unaffected jurisdictions may
offer to provide these legal services either by traveling to the affected
jurisdiction or from their own offices or both, provided the legal services are
provided on a pro bono basis through an authorized not-for-profit entity or
such other organization(s) specifically designated by this Court. A major disaster includes, for example, a
hurricane, earthquake, flood, wildfire, tornado, public health emergency or an
event caused by terrorists or acts of war.

[2] Under paragraph [(1)(a),] this Court shall
determine whether a major disaster causing an emergency affecting the justice
system has occurred in this jurisdiction, or in a part of this jurisdiction,
for purposes of triggering paragraph [(2)] of this Rule. This Court may, for example, determine that
the entirety of this jurisdiction has suffered a disruption in the provision of
legal services or that only certain areas have suffered such an event. The
authority granted by paragraph [(2)] shall extend only to lawyers authorized to
practice law and not disbarred, suspended from practice or otherwise restricted
from practice in any other manner in any other jurisdiction.

[3] Paragraph [(2)] permits lawyers authorized to
practice law in an unaffected jurisdiction, and not disbarred, suspended from
practice or otherwise restricted from practicing law in any other manner in any
other jurisdiction, to provide pro bono legal services to residents of the
affected jurisdiction following determination of an emergency caused by a major
disaster; notwithstanding that they are not otherwise authorized to practice
law in the affected jurisdiction. Other
restrictions on a lawyer's license to practice law that would prohibit that
lawyer from providing legal services pursuant to this Rule include, but are not
limited to, probation, inactive status, disability inactive status or a
non-disciplinary administrative suspension for failure to complete continuing
legal education or other requirements. Lawyers on probation may be subject to
monitoring and specific limitations on their practices. Lawyers on inactive
status, despite being characterized in many jurisdictions as being "in
good standing," and lawyers on disability inactive status are not
permitted to practice law. Public
protection warrants exclusion of these lawyers from the authority to provide
legal services as defined in this Rule. Lawyers permitted to provide legal services
pursuant to this Rule must do so without fee or other compensation, or expectation
thereof. Their service must be provided
through an established not-for-profit organization that is authorized to
provide legal services either in its own name or that provides representation
of clients through employed or cooperating lawyers. Alternatively, this court may instead
designate other specific organization(s) through which these legal services may
be rendered. Under paragraph [(2),] an emeritus lawyer from another United
States jurisdiction may provide pro bono legal services on a temporary basis in
this jurisdiction provided that the emeritus lawyer is authorized to provide
pro bono legal services in that jurisdiction pursuant to that jurisdiction's
emeritus or pro bono practice rule. Lawyers may also be authorized to provide
legal services in this jurisdiction on a temporary basis under Rule 5.5(c) of
the Rules of Professional Conduct.

[4] Lawyers authorized to practice law in another
jurisdiction, who principally practice in the area of such other jurisdiction
determined by this Court to have suffered a major disaster, and whose practices
are disrupted by a major disaster there, and who are not disbarred, suspended
from practice or otherwise restricted from practicing law in any other manner
in any other jurisdiction, are authorized under paragraph [(3)] to provide
legal services on a temporary basis in this jurisdiction. Those legal services must arise out of and be
reasonably related to the lawyer's practice of law in the affected
jurisdiction. For purposes of this Rule,
the determination of a major disaster in another jurisdiction should first be
made by the highest court of appellate jurisdiction in that jurisdiction.For the meaning of "arise out of and
reasonably related to," see Rule 5.5 Comment [14], Rules of Professional
Conduct.

[5] Emergency conditions created by major disasters
end, and when they do, the authority created by paragraphs [(2)] and [(3)] also
ends with appropriate notice to enable lawyers to plan and to complete pending
legal matters. Under paragraph [(4),] this
Court determines when those conditions end only for purposes of this Rule. The
authority granted under paragraph [(2)] shall end upon such determination
except that lawyers assisting residents of this jurisdiction under paragraph
[(2)] may continue to do so for such longer period as is reasonably necessary
to complete the representation. The
authority created by paragraph [(3)] will end [60] days after this Court makes
such a determination with regard to an affected jurisdiction.

[6] Paragraphs [(2)] and [(3)] do not authorize lawyers
to appear in the courts of this jurisdiction. Court appearances are subject to
the pro hac vice admission rules of the particular court. This Court may, in a
determination made under paragraph [(5)(b),] include authorization for lawyers
who provide legal services in this jurisdiction under paragraph [(2)] to appear
in all or designated courts of this jurisdiction without need for such pro hac
vice admission. If such an authorization is included, any pro hac vice admission
fees shall be waived. A lawyer who has
appeared in the courts of this jurisdiction pursuant to paragraph [(5)] may
continue to appear in any such matter notwithstanding a declaration under
paragraph [(4)] that the conditions created by major disaster have ended. Furthermore, withdrawal from a court
appearance is subject to Rule 1.16 of the Rules of Professional Conduct.

[7] Authorization to practice law as a foreign legal
consultant or in-house counsel in a United States jurisdiction offers lawyers a
limited scope of permitted practice and may therefore restrict that person's
ability to provide legal services under this Rule.

[8] The ABA National Lawyer Regulatory Data Bank is
available to help determine whether any lawyer seeking to practice in this jurisdiction
pursuant to paragraphs [(2)] or [(3)] of this Rule is disbarred, suspended from
practice or otherwise subject to a public disciplinary sanction that would
restrict the lawyer's ability to practice law in any other jurisdiction.

Section 2.SCR 20:5.5 of the Supreme Court Rules is
amended to add the following comment:

WISCONSIN
COMMENT

Lawyers desiring to provide pro bono legal services on
a temporary basis in the State of Wisconsin when it has been affected by a
major disaster, when they are not otherwise authorized to practice law in the
State of Wisconsin, as well as lawyers from a jurisdiction affected by a major
disaster who seek to practice law temporarily in this jurisdiction, but who are
not otherwise authorized to practice law in the State of Wisconsin, should
consult Supreme Court Rule 23.03.

IT IS FURTHER ORDERED that the Comments to SCRs 20:5.5
and 23.03 are not adopted, but will be published and may be consulted for
guidance in interpreting and applying the rule.

IT IS FURTHER ORDERED that notice of these amendments
of the supreme court rules be given by a single publication of a copy of this
order in the official state newspaper and in an official publication of the
State Bar of Wisconsin.